The relationship between European consensus, the margin of appreciation and the legitimacy of the Strasbourg Court

When determining whether a state should be granted the margin of appreciation, often the European Court of Human Rights (ECtHR, the Strasbourg Court or the Court) resorts to the method of European consensus. However, important issues remain unclarified concerning the relationship between the two notions, and how such relationship in linked to the legitimacy of the Strasbourg Court. This article firstly shows that the two notions are often, but not always, inter-dependent: there have been cases where the decision on the margin of appreciation points in a different direction than the outcome of the comparative exercise; and in further cases, consensus was not the crucial factor to be taken into consideration by the Strasbourg Court. Thus, consensus is one of the methods used by the Court in its application of the proportionality test, in order to decide on the scope of the margin of appreciation that the contracting parties enjoy. Next, the article explains why clarifying the relationship between consensus and the margin of appreciation will have implications for the Court’s interpretative practice once Protocols 15 and 16 ECHR enter into force. The multi-dimensional legitimacy of the Strasbourg Court is considered afterwards. The article then submits that the way European consensus is generally being used (i.e. as a factor which is obviously not irrelevant but also not always decisive for the outcome on the margin of appreciation) supports the multidimensional legitimacy of the Court. Nonetheless, it concludes by identifying inconsistency in the formulation of the relationship between the two notions in the ECtHR’s jurisprudence, and encourages the Court to codify in a more coherent way that relationship.